McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995)
JUSTICE SCALIA, with whom The Chief Justice joins, dissenting.
At a time when both political branches of Government and both political
parties reflect a popular desire to leave more decisionmaking authority to
the States, today's decision moves in the opposite direction, adding to the
legacy of inflexible central mandates (irrevocable even by Congress) imposed
by this Court's constitutional jurisprudence. In an opinion which reads as
though it is addressing some peculiar law like the Los Angeles municipal
ordinance at issue in Talley v. California, 362 U.S. 60 (1960), the Court
invalidates a species of protection for the election process that exists, in
a variety of forms, in every State except California, and that has a
pedigree dating back to the end of the 19th century. Preferring the views of
the English utilitarian philosopher John Stuart Mill, ante, at 23, to the
considered judgment of the American people's elected representatives from
coast to coast, the Court discovers a hitherto unknown right-to-be-unknown
while engaging in electoral politics. I dissent from this imposition of
free-speech imperatives that are demonstrably not those of the American
people today, and that there is inadequate [514 U.S. 334, 335] reason to
believe were those of the society that begat the First Amendment or the
Fourteenth.
I
The question posed by the present case is not the easiest sort to answer for
those who adhere to the Court's (and the society's) traditional view that
the Constitution bears its original meaning and is unchanging. Under that
view, "[o]n every question of construction, [we should] carry ourselves back
to the time when the Constitution was adopted; recollect the spirit
manifested in the debates; and instead of trying [to find] what meaning may
be squeezed out of the text, or invented against it, conform to the probable
one in which it was passed." T. Jefferson, Letter to William Johnson (June
12, 1823), in 15 Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed.
1904). That technique is simple of application when government conduct that
is claimed to violate the Bill of Rights or the Fourteenth Amendment is
shown, upon investigation, to have been engaged in without objection at the
very time the Bill of Rights or the Fourteenth Amendment was adopted. There
is no doubt, for example, that laws against libel and obscenity do not
violate "the freedom of speech" to which the First Amendment refers; they
existed and were universally approved in 1791. Application of the principle
of an unchanging Constitution is also simple enough at the other extreme,
where the government conduct at issue was not engaged in at the time of
adoption, and there is ample evidence that the reason it was not engaged in
is that it was thought to violate the right embodied in the constitutional
guarantee. Racks and thumbscrews, well known instruments for inflicting
pain, were not in use because they were regarded as cruel punishments.
The present case lies between those two extremes. Anonymous electioneering
was not prohibited by law in [514 U.S. 334, 336] 1791 or in 1868. In fact,
it was widely practiced at the earlier date, an understandable legacy of the
revolutionary era in which political dissent could produce governmental
reprisal. I need not dwell upon the evidence of that, since it is described
at length in today's concurrence. See ante, at 3-13 (THOMAS, J., concurring
in judgment). The practice of anonymous electioneering may have been less
general in 1868, when the Fourteenth Amendment was adopted, but at least as
late as 1837 it was respectable enough to be engaged in by Abraham Lincoln.
See 1 A. Beveridge, Abraham Lincoln 1809-1858, pp. 215-216 (1928); 1
Uncollected Works of Abraham Lincoln 155-161 (R. Wilson ed. 1947).
But to prove that anonymous electioneering was used frequently is not to
establish that it is a constitutional right. Quite obviously, not every
restriction upon expression that did not exist in 1791 or in 1868 is ipso
facto unconstitutional, or else modern election laws such as those involved
in Burson v. Freeman, 504 U.S. 191 (1992), and Buckley v. Valeo, 424 U.S. 1
(1976), would be prohibited, as would (to mention only a few other
categories) modern antinoise regulation of the sort involved in Kovacs v.
Cooper, 336 U.S. 77 (1949), and Ward v. Rock Against Racism, 491 U.S. 781
(1989), and modern parade-permitting regulation of the sort involved in Cox
v. New Hampshire, 312 U.S. 569 (1941).
Evidence that anonymous electioneering was regarded as a constitutional
right is sparse, and as far as I am aware evidence that it was generally
regarded as such is nonexistent. The concurrence points to "freedom of the
press" objections that were made against the refusal of some Federalist
newspapers to publish unsigned essays opposing the proposed constitution (on
the ground that they might be the work of foreign agents). See ante, at 7-9
(THOMAS, J., concurring in judgment). But of course if every partisan cry of
"freedom of the press" were accepted as valid, our Constitution would be
[514 U.S. 334, 337] unrecognizable; and if one were to generalize from
these particular cries, the First Amendment would be not only a protection
for newspapers but a restriction upon them. Leaving aside, however, the fact
that no governmental action was involved, the Anti-Federalists had a point,
inasmuch as the editorial proscription of anonymity applied only to them,
and thus had the vice of viewpoint discrimination. (Hence the comment by
Philadelphiensis, quoted in the concurrence: "`Here we see pretty plainly
through [the Federalists'] excellent regulation of the press, how things are
to be carried on after the adoption of the new constitution.'" Ante, at 8
(quoting Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, in
3 Complete Anti-Federalist 103 (H. Storing ed. 1981)).)
The concurrence recounts other pre- and post-Revolution examples of defense
of anonymity in the name of "freedom of the press," but not a single one
involves the context of restrictions imposed in connection with a free,
democratic election, which is all that is at issue here. For many of them,
moreover, such as the 1735 Zenger trial, ante, at 3-4, the 1779 "Leonidas"
controversy in the Continental Congress, ante, at 4, and the 1779 action by
the New Jersey Legislative Council against Isaac Collins, ante, at 5, the
issue of anonymity was incidental to the (unquestionably free-speech) issue
of whether criticism of the government could be punished by the state.
Thus, the sum total of the historical evidence marshalled by the concurrence
for the principle of constitutional entitlement to anonymous electioneering
is partisan claims in the debate on ratification (which was almost like an
election) that a viewpoint-based restriction on anonymity by newspaper
editors violates freedom of speech. This absence of historical testimony
concerning the point before us is hardly remarkable. The issue of a
governmental prohibition upon anonymous electioneering [514 U.S. 334, 338]
in particular (as opposed to a government prohibition upon anonymous
publication in general) simply never arose. Indeed, there probably never
arose even the abstract question of whether electoral openness and
regularity was worth such a governmental restriction upon the normal right
to anonymous speech. The idea of close government regulation of the
electoral process is a more modern phenomenon, arriving in this country in
the late 1800's. See Burson v. Freeman, supra, at 203-205.
What we have, then, is the most difficult case for determining the meaning
of the Constitution. No accepted existence of governmental restrictions of
the sort at issue here demonstrates their constitutionality, but neither can
their nonexistence clearly be attributed to constitutional objections. In
such a case, constitutional adjudication necessarily involves not just
history but judgment: judgment as to whether the government action under
challenge is consonant with the concept of the protected freedom (in this
case, the freedom of speech and of the press) that existed when the
constitutional protection was accorded. In the present case, absent other
indication I would be inclined to agree with the concurrence that a society
which used anonymous political debate so regularly would not regard as
constitutional even moderate restrictions made to improve the election
process. (I would, however, want further evidence of common practice in
1868, since I doubt that the Fourteenth Amendment time-warped the post-Civil
War States back to the Revolution.)
But there is other indication, of the most weighty sort: the widespread and
longstanding traditions of our people. Principles of liberty fundamental
enough to have been embodied within constitutional guarantees are not
readily erased from the Nation's consciousness. A governmental practice that
has become general throughout the United States, and particularly one that
has the [514 U.S. 334, 339] validation of long, accepted usage, bears a
strong presumption of constitutionality. And that is what we have before us
here. Section 3599.09(A) was enacted by the General Assembly of the State of
Ohio almost 80 years ago. See Act of May 27, 1915, 1915 Ohio Leg. Acts 350.
Even at the time of its adoption, there was nothing unique or extraordinary
about it. The earliest statute of this sort was adopted by Massachusetts in
1890, little more than 20 years after the Fourteenth Amendment was ratified.
No less than 24 States had similar laws by the end of World War I,[1] and
today every State of the Union except California has one,[2] as [514 U.S.
334, 340] does the District of Columbia, see D.C. Code Ann. 1-1420 (1992),
and as does the Federal Government where advertising relating to candidates
for federal office is concerned, see 2 U.S.C. 441d(a). Such a universal[3]
[514 U.S. 334, 341] and long established American legislative practice must
be given precedence, I think, over historical and academic speculation
regarding a restriction that assuredly does not go to the heart of free
speech.
It can be said that we ignored a tradition as old, and almost as widespread,
in Texas v. Johnson, 491 U.S. 397 (1989), where we held unconstitutional a
state law prohibiting desecration of the United States flag. See also United
States v. Eichman, 496 U.S. 310 (1990). But those cases merely stand for the
proposition that post-adoption tradition cannot alter the core meaning of a
constitutional guarantee. As we said in Johnson, "[i]f there is a bedrock
principle underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea
itself offensive or disagreeable." 491 U.S., at 414 . Prohibition of
expression of contempt for the flag, whether by contemptuous words, see
Street v. New York, 394 U.S. 576 (1969), or by burning the flag, came, we
said, within that "bedrock principle." The law at issue here, by contrast,
forbids the expression of no idea, but merely requires identification of the
speaker when the idea is uttered in the electoral context. It is at the
periphery of the First Amendment, like the law at issue in Burson, where we
took guidance from tradition in upholding against constitutional attack
restrictions upon electioneering in the vicinity of polling places, see [514
U.S. 334, 342] 504 U.S., at 204-206 (plurality opinion); id., at 214-216
(SCALIA, J., concurring in judgment).
II
The foregoing analysis suffices to decide this case for me. Where the
meaning of a constitutional text (such as "the freedom of speech") is
unclear, the widespread and long-accepted practices of the American people
are the best indication of what fundamental beliefs it was intended to
enshrine. Even if I were to close my eyes to practice, however, and were to
be guided exclusively by deductive analysis from our case law, I would reach
the same result.
Three basic questions must be answered to decide this case. Two of them are
readily answered by our precedents; the third is readily answered by common
sense and by a decent regard for the practical judgment of those more
familiar with elections than we are. The first question is whether
protection of the election process justifies limitations upon speech that
cannot constitutionally be imposed generally. (If not, Talley v. California,
which invalidated a flat ban on all anonymous leafletting, controls the
decision here.) Our cases plainly answer that question in the affirmative --
indeed, they suggest that no justification for regulation is more compelling
than protection of the electoral process. "Other rights, even the most
basic, are illusory if the right to vote is undermined." Wesberry v.
Sanders, 376 U.S. 1, 17 (1964). The State has a "compelling interest in
preserving the integrity of its election process." Eu v. San Francisco Cty.
Democratic Central Comm., 489 U.S. 214, 231 (1989). So significant have we
found the interest in protecting the electoral process to be that we have
approved the prohibition of political speech entirely in areas that would
impede that process. Burson, supra, at 204-206 (plurality opinion). [514
U.S. 334, 343]
The second question relevant to our decision is whether a "right to
anonymity" is such a prominent value in our constitutional system that even
protection of the electoral process cannot be purchased at its expense. The
answer, again, is clear: no. Several of our cases have held that in peculiar
circumstances the compelled disclosure of a person's identity would
unconstitutionally deter the exercise of First Amendment associational
rights. See, e.g., Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459
U.S. 87 (1982); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama
ex rel. Patterson, 357 U.S. 449 (1958). But those cases did not acknowledge
any general right to anonymity, or even any right on the part of all
citizens to ignore the particular laws under challenge. Rather, they
recognized a right to an exemption from otherwise valid disclosure
requirements on the part of someone who could show a "reasonable
probability" that the compelled disclosure would result in "threats,
harassment, or reprisals from either Government officials or private
parties." This last quotation is from Buckley v. Valeo, 424 U.S. 1, 74
(1976) (per curiam), which prescribed the safety-valve of a similar
exemption in upholding the disclosure requirements of the Federal Election
Campaign Act. That is the answer our case law provides to the Court's fear
about the "tyranny of the majority," ante, at 23, and to its concern that
"`[p]ersecuted groups and sects from time to time throughout history have
been able to criticize oppressive practices and laws either anonymously or
not at all,'" ante, at 8 (quoting Talley, 362 U.S., at 64 ). Anonymity can
still be enjoyed by those who require it, without utterly destroying useful
disclosure laws. The record in this case contains not even a hint that Mrs.
McIntyre feared "threats, harassment, or reprisals"; indeed, she placed her
name on some of her fliers and meant to place it on all of them. See App.
12, 36-40. [514 U.S. 334, 344]
The existence of a generalized right of anonymity in speech was rejected by
this Court in Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), which
held that newspapers desiring the privilege of second class postage could be
required to provide to the Postmaster General, and to publish, a statement
of the names and addresses of their editors, publishers, business managers
and owners. We rejected the argument that the First Amendment forbade the
requirement of such disclosure. Id., at 299. The provision that gave rise to
that case still exists, see 39 U.S.C. 3685, and is still enforced by the
Postal Service. It is one of several federal laws seemingly invalidated by
today's opinion.
The Court's unprecedented protection for anonymous speech does not even have
the virtue of establishing a clear (albeit erroneous) rule of law. For after
having announced that this statute, because it "burdens core political
speech," requires "exacting scrutiny" and must be "narrowly tailored to
serve an overriding state interest," ante, at 13 (ordinarily the kiss of
death), the opinion goes on to proclaim soothingly (and unhelpfully) that "a
State's enforcement interest might justify a more limited identification
requirement." Ante, at 19. See also ante, at 2 (GINSBURG, J., concurring)
("We do not ... hold that the State may not in other, larger circumstances,
require the speaker to disclose its interest by disclosing its identity.")
Perhaps, then, not all the State statutes I have alluded to are invalid, but
just some of them; or indeed maybe all of them remain valid in "larger
circumstances"! It may take decades to work out the shape of this newly
expanded right-to-speak-incognito, even in the elections field. And in other
areas, of course, a whole new boutique of wonderful First Amendment
litigation opens its doors. Must a parade permit, for example, be issued to
a group that refuses to provide its identity, or that agrees to do so only
under assurance that the identity will not be made public? Must a [514 U.S.
334, 345] municipally owned theater that is leased for private productions
book anonymously sponsored presentations? Must a government periodical that
has a "letters to the editor" column disavow the policy that most newspapers
have against the publication of anonymous letters? Must a public university
that makes its facilities available for a speech by Louis Farrakhan or David
Duke refuse to disclose the on-campus or off-campus group that has sponsored
or paid for the speech? Must a municipal "public-access" cable channel
permit anonymous (and masked) performers? The silliness that follows upon a
generalized right to anonymous speech has no end.
The third and last question relevant to our decision is whether the
prohibition of anonymous campaigning is effective in protecting and
enhancing democratic elections. In answering this question no, the Justices
of the majority set their own views -- on a practical matter that bears
closely upon the real-life experience of elected politicians and not upon
that of unelected judges -- up against the views of 49 (and perhaps all 50,
see n. 4, supra) state legislatures and the federal Congress. We might also
add to the list on the other side the legislatures of foreign democracies:
Australia, Canada, and England, for example, all have prohibitions upon
anonymous campaigning. See, e.g., Commonwealth Electoral Act 1918, 328
(Australia); Canada Elections Act, R.S.C., ch. E-2, 261 (1985);
Representation of the People Act, 1983, 110 (England). How is it, one must
wonder, that all of these elected legislators, from around the country and
around the world, could not see what six Justices of this Court see so
clearly that they are willing to require the entire Nation to act upon it:
that requiring identification of the source of campaign literature does not
improve the quality of the campaign?
The Court says that the State has not explained "why it can more easily
enforce the direct bans on disseminating [514 U.S. 334, 346] false
documents against anonymous authors and distributors than against wrongdoers
who might use false names and addresses in an attempt to avoid detection."
Ante, at 19. I am not sure what this complicated comparison means. I am
sure, however, that (1) a person who is required to put his name to a
document is much less likely to lie than one who can lie anonymously, and
(2) the distributor of a leaflet which is unlawful because it is anonymous
runs much more risk of immediate detection and punishment than the
distributor of a leaflet which is unlawful because it is false. Thus, people
will be more likely to observe a signing requirement than a naked "no
falsity" requirement; and, having observed that requirement, will then be
significantly less likely to lie in what they have signed.
But the usefulness of a signing requirement lies not only in promoting
observance of the law against campaign falsehoods (though that alone is
enough to sustain it). It lies also in promoting a civil and dignified level
of campaign debate -- which the State has no power to command, but ample
power to encourage by such undemanding measures as a signature requirement.
Observers of the past few national elections have expressed concern about
the increase of character assassination -- "mudslinging" is the colloquial
term - engaged in by political candidates and their supporters to the
detriment of the democratic process. Not all of this, in fact not much of
it, consists of actionable untruth; most is innuendo, or demeaning
characterization, or mere disclosure of items of personal life that have no
bearing upon suitability for office. Imagine how much all of this would
increase if it could be done anonymously. The principal impediment against
it is the reluctance of most individuals and organizations to be publicly
associated with uncharitable and uncivil expression. Consider, moreover, the
increased potential for "dirty tricks." It is not unheard-of for campaign
operatives to circulate [514 U.S. 334, 347] material over the name of their
opponents or their opponents' supporters (a violation of election laws) in
order to attract or alienate certain interest groups. See, e.g., B. Felknor,
Political Mischief: Smear, Sabotage, and Reform in U.S. Elections 111-112
(1992) (fake United Mine Workers' newspaper assembled by the National
Republican Congressional Committee); New York v. Duryea, 76 Misc. 2d 948,
351 N. Y. S. 2d 978 (Sup. 1974) (letters purporting to be from the "Action
Committee for the Liberal Party" sent by Republicans). How much easier --
and sanction-free! -- it would be to circulate anonymous material (for
example, a really tasteless, though not actionably false, attack upon one's
own candidate) with the hope and expectation that it will be attributed to,
and held against, the other side.
The Court contends that demanding the disclosure of the pamphleteer's
identity is no different from requiring the disclosure of any other
information that may reduce the persuasiveness of the pamphlet's message.
See ante, at 14-15. It cites Miami Herald Publishing Co. v. Tornillo, 418
U.S. 241 (1974), which held it unconstitutional to require a newspaper that
had published an editorial critical of a particular candidate to furnish
space for that candidate to reply. But it is not usual for a speaker to put
forward the best arguments against himself, and it is a great imposition
upon free speech to make him do so. Whereas it is quite usual -- it is
expected -- for a speaker to identify himself, and requiring that is (at
least when there are no special circumstances present) virtually no
imposition at all.
We have approved much more onerous disclosure requirements in the name of
fair elections. In Buckley v. Valeo, 424 U.S. 1 (1976), we upheld provisions
of the Federal Election Campaign Act that required private individuals to
report to the Federal Election Commission independent expenditures made for
communications advocating the election or defeat of a candidate for [514
U.S. 334, 348] federal office. Id., at 80. Our primary rationale for
upholding this provision was that it served an "informational interest" by
"increas[ing] the fund of information concerning those who support the
candidates," id., at 81. The provision before us here serves the same
informational interest, as well as more important interests, which I have
discussed above. The Court's attempt to distinguish Buckley, see ante, at
22-23, would be unconvincing, even if it were accurate in its statement that
the disclosure requirement there at issue "reveals far less information"
than requiring disclosure of the identity of the author of a specific
campaign statement. That happens not to be accurate, since the provision
there at issue required not merely "[d]isclosure of an expenditure and its
use, without more," ante, at 22. It required, among other things:
"the identification of each person to whom expenditures have
been made ... within the calendar year in an aggregate
amount or value in excess of $100, the amount, date, and
purpose of each such expenditure and the name and address
of, and office sought by, each candidate on whose behalf
such expenditure was made." 2 U.S.C. 434(b)(9) (1970 ed.,
Supp. IV) (emphasis added). See also 2 U.S.C. 434(e)
(1970 ed., Supp. IV). (Both reproduced in Appendix to
Buckley, 424 U.S., at 158, 160).
Surely in many if not most cases, this information will readily permit
identification of the particular message that the would-be-anonymous
campaigner sponsored. Besides which the burden of complying with this
provision, which includes the filing of quarterly reports, is infinitely
more onerous than Ohio's simple requirement for signature of campaign
literature. If Buckley remains the law, this is an easy case. [514 U.S. 334,
349]
* * *
I do not know where the Court derives its perception that "anonymous
pamphleteering is not a pernicious, fraudulent practice, but an honorable
tradition of advocacy and of dissent." Ante, at 23. I can imagine no reason
why an anonymous leaflet is any more honorable, as a general matter, than an
anonymous phone call or an anonymous letter. It facilitates wrong by
eliminating accountability, which is ordinarily the very purpose of the
anonymity. There are of course exceptions, and where anonymity is needed to
avoid "threats, harassment, or reprisals" the First Amendment will require
an exemption from the Ohio law. Cf. NAACP v. Alabama ex rel. Patterson, 357
U.S. 449 (1958). But to strike down the Ohio law in its general application
-- and similar laws of 48 other States and the Federal Government -- on the
ground that all anonymous communication is in our society traditionally
sacrosanct, seems to me a distortion of the past that will lead to a
coarsening of the future.
I respectfully dissent.
Footnotes
[1] See Act of June 19, 1915, No. 171, 9, 1915 Ala. Acts 250, 254-255; Act
of Mar. 12, 1917, ch. 47, 1, 1917 Ariz. Sess. Laws 62, 62-63; Act of Apr. 2,
1913, No. 308, 6, 1913 Ark. Gen. Acts 1252, 1255; Act of Mar. 15, 1901, ch.
138, 1, 1901 Cal. Stats. 297; Act of June 6, 1913, ch. 6470, 9, 1913 Fla.
Laws 268, 272-273; Act of June 26, 1917, 1, 1917 Ill. Laws 456, 456-457; Act
of Mar. 14, 1911, ch. 137, 1, 1911 Kan. Sess. Laws 221; Act of July 11,
1912, No. 213, 14, 1912 La. Acts 447, 454; Act of June 3, 1890, ch. 381,
1890 Mass. Laws 342; Act of June 20, 1912, Ex. Sess. ch. 3, 7, 1912 Minn.
Laws 23, 26; Act of Apr. 21, 1906, S. B. No. 191, 1906 Miss. Gen. Laws 295
(enacting Miss. Code 3728 (1906)); Act of Apr. 9, 1917, 1, 1917 Mo. Laws
272, 273; Act of Nov. 1912, 35, 1912 Mont. Laws 593, 608; Act of Mar. 31,
1913, ch. 282, 34, 1913 Nev. Stats. 476, 486-487; Act of Apr. 21, 1915, ch.
169, 7, 1915 N. H. Laws 234, 236; Act of Apr. 20, 1911, ch. 188, 9, 1911 N.
J. Laws 329, 334; Act of Mar. 12, 1913, ch. 164, 1(k), 1913 N.C. Sess. Laws
259, 261; Act of May 27, 1915, 1915 Ohio Leg. Acts 350; Act of June 23,
1908, ch. 3, 35, 1909 Ore. Laws 15, 30; Act of June 26, 1895, No. 275, 1895
Pa. Laws 389; Act of Mar. 13, 1917, ch. 92, 23, 1917 Utah Laws 258, 267; Act
of Mar. 12, 1909, ch. 82, 8, 1909 Wash. Laws 169, 177-178; Act of Feb. 20,
1915, ch. 27, 13, 1915 W. Va. Acts 246, 255; Act of July 11, 1911, ch. 650,
94-14 to 94-16, 1911 Wis. Laws 883, 890.
[2] See Ala. Code 17-22A-13 (Supp. 1994); Alaska Stat. Ann. 15.56.010
(1988); Ariz. Rev. Stat. Ann. 16-912 (Supp. 1994); Ark. Code Ann. 7-1-103
(1993); Colo. Rev. Stat. 1-13-108 (Supp. 1994); Conn. Gen. Stat. 9-333w
(Supp. 1994); Del. Code Ann., Tit. 15, [514 U.S. 334, 340] 8021, 8023
(1993); Fla. Stat. 106.143 and 106.1437 (1992); Ga. Code Ann. 21-2-415
(1993); Haw. Rev. Stat. 11-215 (1988); Idaho Code 67-6614A (Supp. 1994);
Ill. Comp. Stat. 5/29-14 (1993); Ind. Code 3-14-1-4 (Supp. 1994); Iowa Code
56.14 (1991); Kan. Stat. Ann. 25-2407 and 25-4156 (Supp. 1991); Ky. Rev.
Stat. Ann. 121.190 (Baldwin Supp. 1994); La. Rev. Stat. Ann. 18:1463 (West
Supp. 1994); Me. Rev. Stat. Ann., Tit. 21-A, 1014 (1993); Md. Ann. Code,
Art. 33, 26-17 (1993); Mass. Gen. Laws 41 (1990); Mich. Comp. Laws Ann.
169.247 (West 1989); Minn. Stat. 211B.04 (1994); Miss. Code Ann. 23-15-899
(1990); Mo. Rev. Stat. 130.031 (Supp. 1994); Mont. Code Ann. 13-35-225
(1993); Neb. Rev. Stat. 49-1474.01 (1993); Nev. Rev. Stat. 294A.320 (Supp.
1993); N. H. Rev. Stat. Ann. 664:14 (Supp. 1992); N. J. Stat. Ann.
19:34-38.1 (1989); N. M. Stat. Ann. 1-19-16 and 1-19-17 (1991); N. Y. Elec.
Law 14-106 (McKinney 1978); N.C. Gen. Stat. 163-274 (Supp. 1994); N. D.
Cent. Code 16.1-10-04.1 (1981); Ohio Rev. Code Ann. 3599.09(A) (1988); Okla.
Stat., Tit. 21, 1840 (Supp. 1995); Ore. Rev. Stat. 260.522 (1991); 25 Pa.
Cons. Stat. 3258 (1994); R. I. Gen. Laws 17-23-2 (1988); S. C. Code Ann.
8-13-1354 (Supp. 1993); S. D. Comp. Laws Ann. 12-25-4.1 (Supp. 1994); Tenn.
Code Ann. 2-19-120 (Supp. 1994); Tex. Elec. Code Ann. 255.001 (Supp. 1995);
Utah Code Ann. 20-14-24 (Supp. 1994); Vt. Stat. Ann., Tit. 17, 2022 (1982);
Va. Code Ann. 24.2-1014 (1993); Wash. Rev. Code 42.17.510 (Supp. 1994); W.
Va. Code 3-8-12 (1994); Wis. Stat. 11.30 (Supp. 1994); Wyo. Stat. 22-25-110
(1992).
Courts have declared some of these laws unconstitutional in recent years,
relying upon our decision in Talley v. California, 362 U.S. 60 (1960). See,
e.g., State v. Burgess, 543 So.2d 1332 (La. 1989); State v. North Dakota Ed.
Assn., 262 N. W. 2d 731 (N. D. 1978); People v. Duryea, 76 Misc. 2d 948, 351
N. Y. S. 2d 978 (Sup.), aff'd, 44 App. Div. 2d 663, 354 N. Y. S. 2d 129
(1974). Other decisions, including all pre-Talley decisions I am aware of,
have upheld the laws. See, e.g., Commonwealth v. Evans, 156 Pa. Super. 321,
40 A. 2d 137 (1944); State v. Freeman, 143 Kan. 315, 55 P.2d 362 (1936);
State v. Babst, 104 Ohio St. 167, 135 N. E. 525 (1922).
[3] It might be accurate to say that, insofar as the judicially
unconstrained judgment of American legislatures is concerned, approval of
[514 U.S. 334, 341] the law before us here is universal. California,
although it had enacted an election disclosure requirement as early as 1901,
see Act of Mar. 15, 1901, ch. 138, 1, 1901 Cal. Stats. 297, abandoned its
law (then similar to Ohio's) in 1983, see Act of Sept. 11, 1983, ch. 668,
1983 Cal. Stats. 2621, after a California Court of Appeal, relying primarily
on our decision in Talley, had declared the provision unconstitutional, see
Schuster v. Imperial County Municipal Court, 109 Cal. App. 3d 887, 167 Cal.
Rptr. 447 (1980), cert. denied, 450 U.S. 1042 (1981). Page I.